General Municipal Law §
205-e supports lawsuits by police officers when fellow officers violate statutes
that impose clear legal duties, and that are a part of well-developed bodies
of law.

SUMMARY

In two separate, but related cases, police officers sought relief under General
Municipal Law § 205-e. In the first case, Maria Gonzalez was injured as
a result of a traffic accident in which her partner ran a red light in a marked
police vehicle. She sued both her partner and the City of New York under § 205-e
alleging that her partner violated Vehicle
and Traffic Law § 1104(e). The jury awarded her damages, and subsequently
the Appellate Division modified on unrelated grounds and affirmed. The City
of New York appealed on two grounds. First, the City asserted that fellow officer
lawsuits are not authorized under § 205-e. Second, the City argued that Vehicle
and Traffic Law § 1104(e) cannot be grounds for a § 205-e claim.

The Court denied the City's appeal on both grounds. Fellow officers are valid
targets of a General
Municipal Law § 205-e claim. The many and varied amendments to § 205-e do
not specifically exclude claims based on fellow officer actions. The Court concluded
that the Legislative intent was to apply the law expansively to include actions
of fellow officers. Furthermore, the Court determined that Vehicle and Traffic
Laws are part of a well-developed body of law, and that Vehicle
and Traffic Law § 1104(e) imposes a clear legal duty. As such, a § 205-e
claim may be predicated on a violation of § 1104(e).

In the second case, Sean Cosgriff was injured when, in the course of his duties
as a New York City police officer, he tripped and fell on a defective sidewalk.
The City had previously issued a notice requiring repair of the defective sidewalk.
Cosgriff sued the owner of the property, its management company, and the City.
His private claims were settled, but the suit against the City went forward
based on common-law negligence theories and General
Municipal Law § 205-e. The lower courts found in favor of Cosgriff. The
City appealed, arguing that the New York City Charter and Administrative Code
statutes on which Cosgriff based his claim are not appropriate for a § 205-e
claim. The Court denied this appeal as well, holding that New York City Charter
§ 2903(b)(2) and Administrative Code of the City of New York § 7-201(c) dictate
clear legal duties, are part of well-developed bodies of law, and as such, may
be the basis of a § 205-e claim.

Disposition

1) Yes. Actions of fellow officers have not been specifically excluded despite
numerous amendments to the law. The Legislature intended an expansive application
of General
Municipal Law § 205-e to include fellow officers' lawsuits.

2) Yes. Each statute at issue requires a clear legal duty, and is a part of
a well-developed body of law. Therefore, each statute may be the basis of a
claim under General
Municipal Law § 205-e.

In Desmond v.
City of New York,
88 N.Y.2d 455 (N.Y. 1996), the Court considered whether a departmental directive
was "within the class of 'statutes, ordinances, rules, orders and requirements'
whose violation can sustain a cause of action under General
Municipal Law § 205-e." Desmond, 88 N.Y.2d at 459. The Court concluded
that this particular directive was not within this class for failing to meet
the first of two requirements called for in § 205-e. Id. at 463. The
first requirement, which the directive in Desmond lacked, is that the
statute must impose a particularized mandate or a clear legal duty. Id.
at 464. The second requirement is that the statute be part of a well-developed
body of law and regulation. Id. at 464.

The Court indicated that it was going to follow Legislative intent in construing
General Municipal
Law § 205-e expansively. If the Legislature had intended to block fellow
officer lawsuits, the Court reasoned that it would have chosen to do so at one
of the several points in which it amended the statute. After Gonzalez,
it is clear that General Municipal Law § 205-e permits a police officer to sue
the City of New York for misconduct by a fellow officer.

The Court clarified its holding in Desmond
v. City of New York, 88 N.Y.2d 455, 459 (N.Y. 1996), by determining
that the conduct described by a statute, serving as a predicate for a General
Municipal Law § 205-e claim, must be measurable by an objective standard
for purposes of establishing liability. In Desmond, the directive at
issue authorized an officer to use guided discretion within certain specific
criteria, which the Court determined was not a particularized mandate or a clear
legal duty that can be objectively reviewed by a factfinder. In contrast, §
1104(e) establishes a clear duty by imposing "the duty to drive with due
regard for the safety of all persons." Vehicle
and Traffic Law § 1104(e). This statute is also a part of a well-developed
body of law because it is from this State's Legislature which, the Court notes,
"is very different in rank, in kind and in effect from what was involved
in Desmond." Gonzalez at para. 17.

In Cosgriff, the Court distinguished between New York City Charter §
2904 and Administrative Code § 19-152, that do not impose legal duties upon
the City, and City Charter § 2903(b)(2) and Administrative Code § 7-201 which
do place the ultimate duty to direct or effect repairs of sidewalks on the City.
As such, City Charter § 2903(b)(2) and Administrative Code § 7-201 can serve
as the basis for a claim under General
Municipal Law § 205-e.

Unanswered Questions

This Court's holding, that fellow officer lawsuits are not precluded under
General Municipal
Law § 205-e, seems to be at odds with General
Obligations Law § 11-106, which specifically precludes these lawsuits. Considering
this apparent incongruity, will the Legislature respond by amending § 205-e
to preclude cases involving the negligence of fellow officers?

From this holding, as well as that of Desmond
v. City of New York,
88 N.Y.2d 455 (N.Y. 1996), the Vehicle and Traffic Law, New York City Charter,
and Administrative Code qualify as well-developed bodies of law for purposes
of General Municipal
Law § 205-e, while the particular police department directive at issue in
Desmond does not. As a minor consideration, the criteria for determining
whether a law or statute is part of a well-developed body of law have yet to
be articulated in detail. In addition, when considering this holding in conjunction
with subdivision three of § 205-e, would a provision qualify if it codifies
a common-law duty, but is not a part of a well-developed body of law?

In regard to the claim in Cosgriff, does it matter whether a city has
notice of a sidewalk defect when considering this type of claim under General
Municipal Law § 205-e? In other words, can a § 205-e claim be predicated
on City Charter § 2903(b)(2) in isolation, when the requirements of Administrative
Code § 7-201 have not been met?

Survey of the Law in Other Jurisdictions

Other states have not been as receptive as New York when confronted with fellow
officer lawsuits. In Calatayud v. State, 959 P.2d 360 (Ca. 1998), a similar
issue was raised when two California Highway Patrol Officers shot a Pasadena
Police Officer while they were attempting to control and detain a suspect. California
Civil Code § 1714.9 (a)(1) provides that limitation on liability does not
extend where the injury occurs after the presence of the officer is known. The
California Supreme Court declined to extend § 1714.9 (a)(1) to fellow police
officers engaged in the course of their duties.

In New Jersey, N.J.S.A. 34:15-8 provides that persons in the same employ are
not liable for injury or death except for intentional wrongs. The Superior Court
of New Jersey in Linden v. Solomacha, 556 A.2d 346 (N.J. 1989), construed
this bar against tort claims to extend to co-employees working in different
departments. In this case, the injury occurred when a state police officer was
struck by a state vehicle driven by an employee of the state Department of Treasury
while both were acting in their official capacities.

Similarly, the Supreme Court of Illinois in Mitsuuchi v. City of Chicago,
532 N.E. 2d 830 (Ill. 1988), held that an injured police officer was barred
from bringing a common-law negligence action against a fellow officer after
their squad car struck a light pole. The appellate court had previously ruled
that the officer could not maintain a common-law negligence action against the
City under §§ 22-18 through §§ 22-22 of the Municipal Code, which were enacted
under the authority of § 22-306 of the Pension Code. The Supreme Court of Illinois
held that a plaintiff is barred from maintaining a negligence action against
a fellow officer under § 22-307 of the Pension Code.

In Washington, however, fellow officer lawsuits have received similar treatment
to that in New York. In Taylor v. City of Redmond, 89 Wash.2d 315, 571
P.2d 1388 (1977), the Supreme Court of Washington addressed the issue of whether
a city police officer who was shot by a fellow officer while both were on duty
could sue the city and the fellow officer for negligence. The Court held that
the officer was not within the scope of the Workers Compensation Act because
the Law Enforcement Officersç and Fire Fightersç Retirement System Act exempted
police officers and fire fighters from coverage. Thus, the officer was able
to bring a negligence suit against the city and fellow officer.

Finally, on a related note, the Supreme Court of Louisiana examined the issue
of whether the Sewerage and Water Board of New Orleans was immune from tort
liability where a New Orleans police officer was injured when his patrol car
hit an open sewer hole. The Court in Roberts v. Sewerage and Water Board
of New Orleans, 634 So.2d 341 (1994), held that the Sewerage and Water Board
was independent and autonomous from the City of New Orleans and, thus, was not
entitled to tort immunity as the employer of the officer.